Archive for the ‘ student debt ’ Category

Feds Scrutinize Student Loan Repayments

Posted on: March 6, 2017 by in Bankruptcy, student debt
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Shortly before President Donald Trump was sworn into office, the Consumer Financial Protection bureau filed suit against one of the country’s largest student loan servicers.

According to court documents, Navient was guilty of two sins. First, it failed to properly credit additional payments on existing loans, although part of the blame may fall on borrowers. Under federal law, any excess funds on top of the minimum monthly payments are applied to principal and interest unless the borrower specifies otherwise, so many people who thought they were making additional principal reduction payments were basically just making regular payments in advance. Most payments go through lockboxes, an automated process that saves time but may result in confusion over funds applications. Secondly, and more importantly for bankruptcy purposes, the CFPB alleged that Navient steered distressed borrowers into forbearance agreements as opposed to alternative repayment plans.

In the wake of the lawsuit, a few borrowers have mulled a payment strike.

Discharging Student Loans in Bankruptcy

Many distressed student loan borrowers attempt to discharge their loans in bankruptcy. Before lawmakers amended the Bankruptcy Code in 1978, student loans were dischargeable in both Chapter 7 and Chapter 13 bankruptcies just like any other unsecured debt. But in the 1978 amendments, Congress inserted a provision that limited student loan discharge to cases involving “undue hardship,” a phrase that lawmakers intentionally left undefined to limit the political fallout this change caused.

Nine years later, the Second Circuit defined the phrase in Brunner v. New York State Higher Education Services Corporation. The court used a three-part analysis to determine if a debtor had an “undue hardship” under the new Section 523(a).

  • – Consistent Payment History: Before they receive discharges, debtors must show that they made good-faith efforts to repay their loans, which usually means a regular, if somewhat sporadic, payment history.
  • – Effect on Dependents: The debtor must convince the court that repaying the student loan is so onerous that the debtor’s family would be unable to sustain a minimal standard of living (i.e. above the poverty line).
  • – Permanent: The hardship cannot be a business reversal or period of unemployment, but rather a disability that’s either permanent or expected to last through most of the repayment period.

The Brunner Rule also requires that the disability not be a self-inflicted injury; for examples, lawyers who are disbarred because of their own wrongdoing are not eligible for hardship discharges. Many commentators, and some dissenting judges as well, criticized the Brunner Rule throughout the 1990s and early 2000s, because it effectively eliminates discharge for anything other than a physical or emotional disability that occurs after the debtor finished school.

Reconsidering the Brunner Rule

The country is divided into eleven appeals circuits. Many circuits, including the neighboring Eighth Circuit based in St. Louis, have thrown out the harsh Brunner Rule and replaced it with a totality-of-the-circumstances analysis. However, the Seventh Circuit, which includes both Indiana and Illinois, reaffirmed the Brunner Rule in Tetzlaff v. Educational Credit Management Corporation. This case involved a law school graduate with over $260,000 in student loans who could not pass the bar due to chronic alcoholism and depression and may not even be eligible to sit for the test because of a prior criminal record. Despite his dire circumstances, the court mechanically applied the Brunner Rule, which clearly did not allow discharge under these facts.

In January 2016, despite the split in the circuits, the Supreme Court refused to review Tetzlaff, so it is still the law in this geographic area.

Reach Out to Experienced Attorneys

Student loans are dischargeable in bankruptcy in limited circumstances. For a free consultation with an experienced bankruptcy attorney in Chicago, contact the Bentz Holguin Law Firm, LLC. We routinely handle cases in both Illinois and Indiana.

Resources:

scotusblog.com/wp-content/uploads/2015/10/tetzlaff-op-below.pdf

law.resource.org/pub/us/case/reporter/F2/831/831.F2d.395.41.87-5013.html

usnews.com/education/blogs/student-loan-ranger/articles/2017-02-01/tips-for-borrowers-to-ensure-student-loans-are-serviced-correctly

Changes Coming To Student Loan Payments?

Posted on: January 10, 2017 by in Bankruptcy, student debt
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President-elect Donald Trump wants to tweak existing federal programs and help borrowers repay their school loans at a comfortable pace.

Under a plan he proposed in October 2016, monthly payments would be capped at 12.5 percent of the borrowers’ income for 180 months (15 years), and once the repayment period expires, any remaining student loan debt would be forgiven. The federal government already has similar programs, but the Trump plan would streamline program requirements and probably result in more money coming into the federal government, as both the repayment periods and payment caps would be slightly higher than they are now. Additionally, Education Secretary-designate Betsy DeVos has proposed risk-sharing between the school and federal government, which should reduce the number of defaults.

Despite what some people term the student loan “crisis,” Congress has shown almost no interest in taking action, although several lawmakers have introduced such bills in the recent past.

Current Law

Before lawmakers changed the Bankruptcy Code in 1975, student loans were dischargeable in bankruptcy just like any other unsecured debt. As Congress debated these changes, the student protests in the 1960s from groups like Students for a Democratic Society were still fresh on people’s minds. As a matter of fact, just before these debates began, about four million students protested the killing of student protestors at Kent State in nearby Ohio.

Some conservative lawmakers felt, rightly or wrongly, that some student protesters borrowed money to attend school and then promptly welched on those debts. Indeed, Congress changed the Bankruptcy Code to make student loans dischargeable in bankruptcy only upon showing of “undue hardship,” but lawmakers did not define this phrase.

It is impossible to know for sure, but anti-student bias may have been in the back of the judges in New York’s Second Circuit Court of Appeals when they issued Brunner v. New York State Higher Education Services Corporation. When Ms. Brunner asked a bankruptcy court to discharge her rather modest loans, despite the fact that she had just entered her repayment period and had apparently made little or no attempt to repay them, the court found no evidence of unemployment, illness, or other hardship. Furthermore, the court was clearly miffed that Ms. Brunner did not seek a forbearance or some other relief prior to asking for a discharge.

So, basically to prevent the Marie Brunners of the world from obtaining student loan discharges, the court came up with a three-prong test to determine “undue hardship:”

  • The debtor cannot maintain a minimal standard of living (e. stay above the poverty line) if forced to repay the loans,
  • The hardship is either permanent or likely to persist for the entire repayment period, and
  • The debtor has made a good-faith effort to repay the loans.

Over the years, many judges criticized the Brunner Rule because of its harshness.

Current Law

These criticisms, and the mushrooming amount of student debt, have prompted some courts to change their approach to student loan discharge. Unfortunately for debtors in Illinois and Indiana, the Seventh Circuit reaffirmed the Brunner Rule in 2015 with very little discussion. In Tetzlaff v . Educational Credit Management Corporation, Mark Tetzlaff claimed he could not repay his law school loans, largely due to prior substance abuse and depression issues. However, the court was not persuaded, and ruled that Mr. Tetzlaff’s situation could improve, so therefore he was not eligible for a discharge.

Contact Experienced Attorneys

It is not easy to obtain student loan discharge under current law, but it is not impossible either. For a free consultation with an experienced bankruptcy attorney in Chicago, contact the Bentz Holguin Law Firm, LLC. After hours appointments are available.

Resources:

webcache.googleusercontent.com/search?q=cache:http://www.moranlaw.net/student_loan_brunner.htm

scotusblog.com/wp-content/uploads/2015/10/tetzlaff-op-below.pdf

forbes.com/sites/zackfriedman/2016/12/14/trump-student-loan-repayment/#4a2b40344f65

The Changing Face Of Bankruptcy And Student Loans

Posted on: December 14, 2016 by in Bankruptcy, student debt
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There is an old axiom among lawyers that “bad facts make bad law,” and the law regarding student loans and bankruptcy is an excellent example of this old saying.

Congress passed the Bankruptcy Act in 1867, and passed substantive amendments in 1898. The Bankruptcy Code remained essentially unchanged until 1938, when lawmakers introduced the “chapters” format which is so familiar today. Postsecondary education was still somewhat rare in 1938 and student loans were basically unheard of, so the 1938 act classified these obligations and unsecured debts and made them 100 percent dischargeable.

In the 1960s and 1970s, society changed radically, because of a confluence of social, economic, and political factors. This cauldron of change produced Brunner v. New York State Higher Education Services Corp., a 1982 decision from the Second Circuit in New York that fundamentally changed the relationship between student loans and bankruptcy.

The Brunner Rule

Before we get to the rule, a bit more background is necessary. When Congress started debating changes to the Bankruptcy Code in the late 1970s, some lawmakers believed that 1960s student protesters borrowed their way through college and had no intention to ever repay these loans; other lawmakers insisted that there was little no evidence to support this belief. In the end, Congress inserted a provision in the Bankruptcy Reform Act of 1978 that made student loans dischargeable only upon a showing of “undue hardship.” Congress did not define that phrase, leaving it up to the courts to decide.

Marie Brunner accumulated about $7,000 in college loans as a student in the 1970s, and even in that era, $7,000 was not an eye-popping sum of money. Despite the fact that she was apparently working and had made little or no effort to pay the loans, she almost immediately petitioned the Bankruptcy Court for a discharge.

To evaluate her claim, the Second Circuit adopted a three-prong test. Most all other federal courts in the United States promptly adopted the Brunner rule:

  • – Minimal Standard of Living: To receive a bankruptcy discharge, student loan debtors must show that the payments are so burdensome that they cannot subsist above the poverty line.
  • – Permanent: The complained-of hardship cannot be a job loss or business downturn, but rather a permanent obstacle that prevents repayment.
  • – Good-Faith Repayment Effort: Only student loan debtors with good payment histories can receive a discharge.

In other words, bad facts make bad law. The Second Circuit adopted a test which would prevent the Marie Brunners of the world from obtaining discharges, and in so doing, the court adopted a test that prevented almost anyone else from obtaining similar relief, regardless of the merit of their claims. Realistically, under the Brunner rule, only debtors who are permanently disabled in a post-school accident or other such incident are eligible for student loan discharges.

Reconsidering the Brunner Rule

Some circuits have rejected the Brunner rule, because many of today’s students borrowed tens of thousands of dollars to get through school and they are hard-pressed to make the payments after they graduate.

Unfortunately, the Seventh Circuit, which includes both Illinois and Indiana, recently reaffirmed the Brunner rule in Tetzlaff v. Educational Credit Management Corporation (2015). The good news is that the panel thoroughly reviewed the three-part Brunner rule, and indicated that if Mark Tetzlaff’s circumstances were almost completely beyond his control, the court would have granted a discharge.

Someday soon, hopefully the Supreme Court will resolve the split in the circuits and do away with the outmoded Brunner rule. Until that happens, bankruptcy lawyers can certainly make good-faith arguments for discharge, if the student loan debtors have more loans than they can comfortably repay and if they suffer from misfortunes that are at least partially beyond their control.

Contact Aggressive Lawyers

Student loans may be dischargeable in consumer bankruptcies. For a free consultation with an experienced bankruptcy attorney in Chicago, contact the Bentz Holguin Law Firm, LLC. Convenient payment plans are available.

Resources:

law.resource.org/pub/us/case/reporter/F2/831/831.F2d.395.41.87-5013.html

scotusblog.com/wp-content/uploads/2015/10/tetzlaff-op-below.pdf

Former ITT Tech Students Begin Student Loan Strike

Posted on: September 20, 2016 by in Bankruptcy, student debt
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A few debt-ridden former students of the now defunct for-profit college are taking a stand against high student loan payments by intentionally refusing to make payments.

More than 100 people announced the joint effort in a letter to President Barack Obama and Education Secretary John King. Despite the former college’s assurances that nearly three-fourths of graduates received jobs after graduation, many former students feel bad about their prospects. “Now when I interview or submit my resume to future employers they will look at where my education and degree is coming from and laugh,” mused one man. In their letter, the former students blame the Education Department for failing to protect them from “ITT’s scam.” The college was forced to close after the federal government said it would no longer provide financial assistance to its students. Earlier, in 2015, for-profit Corinthian College underwent similar scrutiny. It was forced to close and, the California Attorney General ultimately obtained a $1 billion fraud judgement against the entity.

ITT Tech had three campuses in Chicagoland.

Student Loans and Bankruptcy

Until the Bankruptcy Code was amended in the 1970s, student loans were dischargeable in a Chapter 7 or Chapter 13 bankruptcy just like any other unsecured debt. But at the same time Congress began debating these legal changes, some lawmakers expressed concern that student radicals went to school on Uncle Sam’s dime, stirred up trouble on campus, and then refused to pay their loans after graduation. That may or may not have been true, but as so often happens, perception became reality.

The new Bankruptcy Code stated that student loans could be discharged based on “undue hardship,” a phrase that was not really defined. Several years later, the Second Circuit Court of Appeals decided Brunner v. New York State Higher Education Services Corp. Marie Brunner graduated with about $9,000 in student loans, which even back in the 1970s/1980s was not an enormous amount of money. Furthermore, Ms. Brunner asked a bankruptcy court to discharge her loans even though she had only recently graduated and had probably never made a single payment, and could show no evidence of undue hardship.

Rather predictably, the court refused to discharge her loans and also articulated a very harsh definition for “undue hardship.” To have their student loans discharged, borrowers must show:

  • Repayment History: Borrowers must have made a good faith effort to repay the money they used to attend school.
  • “Minimal” Standard of Living: The borrowers must demonstrate that, if forced to repay the loans, they cannot subsist above the poverty line.
  • Permanent Hardship: The condition that prevents repayment must be permanent and must not be related to the borrower’s fault.

Under the Brunner Rule, it is difficult, although certainly not impossible, to discharge student loans based on anything other than a physical disability or injury that occurred after graduation that renders it impossible for the person to pursue his or her chosen profession.

A New Attitude?

Although some circuits are reconsidering the Brunner Rule in light of the current student loan crisis, the Seventh Circuit, which includes Illinois and Indiana, remains committed to this standard. In Tetzlaff v. Educational Credit Management Corp. (2013), Mark Tetzlaff accumulated an eye-popping $260,000 in debt attending college and law school. He had failed the bar exam twice, largely because of chronic depression and substance abuse issues. However, the court was unmoved by the circumstances and stated that Mr. Tetzlaff was ineligible for discharge under the Brunner Rule.

As mentioned, several other circuits, including the neighboring Eighth Circuit, have adopted a more lenient totality-of-the-circumstances analysis. So, this question will probably wind up before the United States Supreme Court.

Contact Experienced Attorneys

Student loan discharge in bankruptcy may soon become easier. For a confidential consultation with an experienced bankruptcy attorney in Chicago, contact the Bentz Holguin Law Firm, LLC. We have offices in Illinois and Indiana.

Student Debt Relief Scams

Posted on: August 25, 2016 by in Bankruptcy, debt, student debt
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Are you struggling to make your monthly student loan payments? If so, you are not alone. Young Americans are carrying an unprecedented amount of student loan debt and many borrowers are having a hard time keeping up with their loan payments. Unfortunately, scam artists are capitalizing on this situation by running ads offering student borrowers lower monthly payments and even debt forgiveness plans. While there are some legitimate debt relief programs out there, most of them run by the government, be wary of any advertisement offering relief from student loans as many are scams.

How Student Debt Relief Scams Operate?

An article from CentralIllinoisProud.com reports that there are several different types of student debt relief scams currently circulating in the United States. The article notes that some of these scams, such as the “Obama Student Loan Forgiveness Program”, attempt to pose as government sanctioned programs. Many scams advertise lower monthly payments or debt forgiveness in exchange for an upfront fee. Some of these scams even make good on their promise of reduced monthly payments, however, what they are actually doing is passing off free federal government debt relief programs as their own and then charging borrowers for it. According to the Department of Education some of these scams charge monthly maintenance fees as high as $50 for this “service”.

What to do if You are Struggling with Student Loan Debt

CentralIllinoisProud.com suggests that student borrowers who are stuggling to pay their bills take the following actions:

  • – Contact your student loan servicer and ask them if there are any helpful debt relief programs available to you,
  • – Consolidate your loans in order to make it easier to keep track of your payments (note that this may not be in your best interest if they offer you a higher aggregate interest rate on your consolidated loan),
  • – Ask your student loan servicer if you can lower your monthly payments by enrolling in an income-based repayment plan,
  • – Enquire if you are eligible for a federal student loan forgiveness program, and
  • – Consider refinancing your loans with a private lender.

While all of these options are worth pursuing, unfortunately some borrowers will still be facing monthly payments that they are unable to keep up with. However, there is an alternate option available to some borrowers: bankruptcy. Filing for bankruptcy generally does not cancel student debt, however, if the borrower is able to show that paying the debt would impose an “undue hardship” a bankruptcy court may allow the student debt to be wiped out during the borrower’s bankruptcy proceedings. Be warned though, proving undue hardship under these circumstances is extremely difficult. If you are interested in pursuing bankruptcy in order to alleviate your student debt contact an experienced bankruptcy lawyer to discuss whether or not a count would likely find that requiring you to pay the debt would impose an undue hardship.

Need Legal Advice?

If you live in Illinois or Indiana and are in need of debt relief, contact the experienced lawyers of the Bentz Holguin Law Firm, LLC today. Our debt relief attorneys would be happy to sit down with you during a free consultation to discuss your financial situation and your legal options.